COVID-19 Legal FAQ Update – Executive Order 2020-035 and School Waivers **4.21.20**

Memorandum

From:  CEA Legal Center

Date:  April 21, 2020

RE:  COVID-19 Legal FAQ Update – Executive Order 2020-035 and School Waivers 


This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law. CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.

Question: Governor Polis recently issued an executive order amending some of his earlier executive orders about in-person instruction in the schools. What does the new executive order do?

Answer: Executive Order 2020-035, issued on April 14, 2020, does, among other things, the following:

  1. It extends, to May 14, 2020, the earlier executive orders suspending in-person instruction in the schools. This means that all provisions of the prior orders are extended, including but not limited to: the suspension of in-person instruction, State school assessment requirements, and particular provisions of the Colorado Evaluation Act; the directive to schools to cancel all extra-curricular activities; and the requirement that schools ensure the provision of school meals in compliance with the National School Lunch Act.
  2. It suspends a number of statutory requirements applicable to schools during the time that the executive order is in effect, including provisions of the READ Act, student sight and hearing test requirements, and childcare licensing fees.
  3. It suspends the required procedures for school districts to obtain waivers of statutory requirements from the State Board of Education, and it authorizes the State Board to grant such waivers to districts on its own initiative without any applications or requests from the districts.

The third item is very concerning to CEA. It enables school districts to obtain, and the State Board to grant, waivers of important Colorado statutes — without the receipt of an application or any information about crucial questions, such as why the particular statute(s) need to be waived. Unfortunately, one of the favorite statutes of school districts to waive, whenever they’re given the opportunity, is the Colorado Teacher Employment, Compensation and Dismissal Act (“TECDA”), which grants basic employment rights to public school teachers. School districts should not be permitted to deny teachers their basic rights as employees without proof that it is actually essential to do so due to the COVID-19 pandemic.

Fortunately, the executive order does not suspend all legal requirements applicable to the granting of waivers. It only suspends “the waiver procedures,” and not the substantive provisions, of the waiver statute. The latter provide for waivers to be granted by the State Board if the waivers “would enhance educational opportunity and quality” and “the costs to the district of complying with the requirements for which the waiver is requested significantly limit educational opportunity.” C.R.S. Section 22-2- 117(1)(a). Even with the Governor’s executive order, the State Board must still comply with these statutory requirements in granting waivers to school districts.

Please do not hesitate to contact your Union representative if you have any questions or concerns.